Mirkarimi Lesson: Attorney-Client Privilege Covers Non-Attorneys

By Robyn Hagan Cain on March 20, 2012 9:03 AM

Yesterday, San Francisco Sheriff Ross Mirkarimi was sentenced to one day in jail and three years' probation for false imprisonment in a domestic violence incident. While the plea agreement provided plenty of headline fodder — sheriffs are supposed to enforce the laws, not break them — Mirkarimi might have been able to walk away from the incident scot-free if an evidence ruling had been decided differently.

Sheriff Mirkarimi and his wife, Eliana Lopez, had an argument on New Year's Eve that turned into a physical altercation. During the argument, Mirkarimi grabbed and bruised Lopez's arm. The next day, Lopez told her neighbor, Ivory Madison, about the argument. Madison took a video of Lopez describing the incident, crying, and displaying her bruised arm. Three days later, Madison reported the incident to the police, according to the Los Angeles Times.

Lopez, however, refused to cooperate with investigators, so the video tape was the only evidence of the crime.

Lopez's attorney tried to suppress the video tape under attorney-client privilege because Madison had a law degree. Madison isn't licensed as an attorney, but California's privilege law arguably extended to her in this case.

California Evidence Code §954 provides that a "client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer." The California Evidence Code doesn't just cover communications with licensed lawyers. Evidence Code §950 states that "lawyer" -- for the purposes of the Code -- "means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation."

Lopez's attorneys claimed that Lopez believed that Madison was an attorney, and therefore the video should be excluded under the attorney-client privilege, reports CBS San Francisco. Here, the judge in Mirkarimi's case ruled that Lopez could not invoke the §954 privilege because she was not a party to the case.

While the §954 privilege didn't work for Sheriff Ross Mirkarimi, you may be able to use it to suppress evidence in one of your cases. If prosecutors try to introduce statements that your criminal defense client made to a person he reasonably believed to be an attorney, your client can invoke privilege to ensure that the statements are not used against him.

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